INITIATIVE SIGNATURES INADMISSIBLE: Signatures Invalid Without Attaching the Proposed Amendments

31 March 2006

Not a single signature in the “people’s” initiative campaign led by Sec. Ronaldo Puno and barangay officials in a petition to revise the Constitution, may be admitted by the Comelec, due to, among others, the failure of the organizers to attach the particular provisions containing the proposed amendments. CODAL warns Comelec officials that verifying the signatures without the attached proposed amendments is not only a waste of public funds but a violation of the Anti-Graft and Corrupt Practices Act, Sec. 261 (e) of the Election Code and the Revised Penal Code making each DILG and Comelec officer liable for graft.

The forms being circulated by barangay officials for signature provide that the signatories approve the proposal to amend Article VI, Article VII and the Transitory Provisions of the 1987 Constitution. Article VI contains thirty-two (32) sections, Art. VII contains twenty-three (23) sections and Art. XVIII of the 1987 Constitution on Transitory Provisions contain twenty-seven (27) sections, making it almost impossible for the signatories to approve such massive revision of eighty-two (82) constitutional provisions, especially if they have not read the actual proposed changes.
The transitory provisions will most likely contain provisions allowing Pres. Gloria Arroyo to retain her powers and office until 2010 and lift term limits, thereby allowing her to be Prime Minister for the rest of her natural life. Considering that according to all surveys more than 51% of the people do not want her to stay in office, those campaigning for signatures may be guilty of fraudulent misrepresentation in collecting these signatures without explaining what the signatories are supporting. Sec. 261 (e) prohibits:

(e)Threats, ..use of fraudulent device or other forms of coercion. - Any person who, directly or indirectly, intimidates … or uses any fraudulent device or scheme to compel or induce the registration of any voter….or the participation in a campaign… or the casting of any vote or omission to vote, or any promise of such registration, campaign, vote, or omission therefrom.

People’s Initiative is Unconstitutional and Illegal

Section 2, Art.XVII of the 1987 Constitution which is used as a basis by supporters of the current people’s initiative, provides that “Amendments to this Constitution may likewise be directly proposed by the people through initiative… The Congress shall provide for the implementation of this right.” This means that no people’s initiative may be valid absent a law passed by Congress. The Supreme Court has said so in Santiago vs. Comelec when it declared the ‘Pirma’ initiative unconstitutional due to the absence of a law sufficient to regulate people’s initiative. It has even ‘permanently enjoined’ the Comelec from entertaining any petition on people’s initiative without the passage of the said law. Since no law on people’s initiative has been passed until now, taking official
cognizance of an initiative petition is both unconstitutional and illegal.

Furthermore, the Constitution only allows a people’s initiative to amend, not to ‘revise’ the Constitution, since the power to revise is only given to a Constitutional Convention or a Constituent Assembly as mandated by Sec. 1, Art. XVII of the 1987 Constitution. The current people’s initiative to revise a total of eighty-two (82) Sections of the Constitution is therefore unconstitutional and its signatures invalid, particularly if the proposed 82 amendments are not included in the signature form of the petition.

Criminal and Administrative Liability

Public officials organizing the people’s initiative and Comelec election officers verifying the signatures of such, are criminally liable under Article 231 and Article 241 of the Revised Penal Code, for openly disobeying the orders of the Constitution and the Supreme Court:

Art. 231. Open disobedience. - Any judicial or executive officer who shall openly refuse to execute the judgment, decision or order of any superior authority made within the scope of the jurisdiction of the latter and issued with all the legal formalities, shall suffer the penalties of arresto mayor in its medium period to prision correccional in its minimum period, temporary special disqualification in its maximum period and a fine not

Art. 241. Usurpation of judicial functions. - The penalty of arresto mayor in its medium period to prision correccional in its minimum period shall be imposed upon any officer of the executive branch of the Government who shall assume judicial powers or shall obstruct the execution of any order or decision rendered by any judge within his jurisdiction

Comelec and DILG personnel who allot public funds for the campaign or verification of the signatures therein are also guilty of misappropriating public funds under Art. 220 of the Revised Penal Code which provides that:

Art. 220. Illegal use of public funds or property. - Any public officer who shall apply any public fund or property under his administration to any public use other than that for which such fund or property were appropriated by law or ordinance shall suffer the penalty of prision correccional in its minimum period or a fine ranging from one-half to the total of the sum misapplied, if by reason of such misapplication, any damage or embarrassment shall have resulted to the public service. In either case, the offender shall also suffer the penalty of temporary special disqualification.

TRO in Provinces and Districts

CODAL calls on concerned lawyers throughout the country to file an action for a Temporary Restraining Order (TRO) on the peoples initiative within their respective cities or districts. Considering the constitutional requirement that a valid initiative must have the signatures of at least 3% of the voters in each district, a TRO in only one district will immediately destroy the current initiative. CODAL requests lawyers not to file a petition with the Supreme Court for the moment, but rather focus on local courts or at most with the Court of Appeals. Lastly, the current initiative must be stopped not only because it is unconstitutional but also because it does not benefit the interest nor stem from the will of the people. If only for this, we must ensure that this illegal, unconstitutional, anti-people and anti-Filipino scheme will fail.

UN CASES FILED IN UNITED NATIONS TODAY: UN REQUESTED TO SEND RAPPORTEUR TO INVESTIGATE ARBITRARY DETENTION OF REP. CRISPIN BELTRAN

News Report

A complaint against Pres. Gloria Arroyo and the Philippine government for the illegal arrest and arbitrary detention of Rep. Crispin Beltran was filed today with the United Nations Human Rights Committee (HRC) in New York and the Working Group for Arbitrary Detention (WGAD) in Geneva, Switzerland. The complaint, filed by Rep. Beltran through CODAL lawyer Atty. Neri Javier Colmenares, was received by Marcus Schmidt head of the Petitions Unit of the UN HRC and was immediately transmitted to Mr. Pierre del Prado of the Working Group on Arbitrary Detention.

The complaint cited the illegal arrest and arbitrary detention of Rep. Beltran as violations by Pres. Arroyo and the Philippine government of the International Covenant on Civil and Political Rights (ICCPR) and other international human rights law. The complaint claims that :

(i) Rep. Beltran was arrested on the basis of his political beliefs. The warrant used in arresting Rep. Beltran was based on a 1985 case that was dismissed after Pres. Marcos was overthrown in 1986 for being one of the politically motivated cases filed by Marcos against legitimate dissenters. By using that same case to arrest Beltran, Pres. Arroyo is essentially imprisoning Rep. Beltran for his political beliefs and not for any criminal act committed by him. This is strictly prohibited under international law.

(ii) Rep. Beltran remains in custody despite the absence of any judicial order for his detention. In fact, he was ordered released by a Quezon City RTC on 13 March 2006. No person can be detained merely because a case or information has been filed against him or her. There must be a warrant or an Order of Commitment issued by a court to make such detention legal.

The complaint asked the United Nations to :

a. Express concern over the arbitrary arrest and continuing detention of Rep. Beltran and threats of warrantless arrests against other members of the opposition.
b. Urge Pres. Arroyo and Gen. Arturo Lomibao to desist from conducting warrantless arrests against known opposition personalities from people’s organizations, and process their arrest through a judicially issued warrant.

c. Immediately send a special rapporteur to investigate the case of Rep. Beltran and submit a report to the UN. The UN is also asked to request the release of Rep. Beltran pending such investigation.

A complaint against Pres. Arroyo for the summary execution of activists Eden Marcellana, Choy Napoles, Benjaline Hernandez and Eddie Gumanoy was also filed with the UN Human Rights Committee.

Civil Libertarians and human rights lawyers are seriously concerned about the failure of government to follow judicial procedures in conducting arrests, in threatening and raiding media offices and dispersing rallies, and it is hoped that UN intervention may force government to follow legal and constitutional processes in its dealing with opposition.

Reference Person: Atty. Neri Javier Colmenares
News Report Date: March 17, 2006

USE OF PUBLIC OFFICE FOR POLITICAL PERSECUTION: CRIMINAL AND ADMINISTRATIVE LIABILITY FOR PRES. ARROYO AND DOJ PERSONNEL

Statement of March 14, 2006

CODAL expresses concern over the Executive’s continuing exercise of unconstitutional and illegal acts against ‘residual’ threats to Pres. Gloria Arroyo, despite the supposed lifting of Proclamation 1017. The continuing arrests conducted against opposition members, with Mr. Linggoy Alcuaz as the latest victim, the unconstitutional acts committed by the Department of Justice in relation to the six party list representatives, and continuous threats against the media all show that the President still wants to crush the opposition by violating established constitutional and statutory rules.

DOJ Actions Violative of Laws on Public Officials

CODAL believes that the transfer of the hearing of the ‘Batasan Five’ to the House of Representatives violates not only DOJ rules but the anti-graft law itself. Firstly, transferring the hearing venue to a venue other than that stated in the Subpoena, for no legal reason and without notifying the respondents, is clearly illegal, especially since Rep. Ocampo and the other respondents did not request for such transfer. Secondly, suddenly rescheduling the preliminary investigation from 2:00 p.m. as stated in the Subpoena to 10:00 a.m. is clearly violative of the rights of the respondents as it caught them and their lawyers by surprise resulting in their failure to appear at their own preliminary investigation.

The explanation of Pros. Emmanuel Velasco, that they have announced to the media as early as Saturday that the hearing is scheduled at 10:00 am in the House of Representatives shocks members of the legal community for the seeming ignorance of the law exhibited by the DOJ, since under the Rules, notices of the DOJ or any tribunal for that matter, cannot be transmitted through the media. Timely notification through subpoena or summons, not through media, is the proper process for notification. The DOJ panel may be liable under Sec.3 of RA 3019 or the Anti-Graft and Corrupt Practices Act, which prohibits public officials from:

(e) Causing undue injury to any party…in the discharge of his official administrative or judicial functions, through manifest partiality, evident bad faith or gross inexcusable negligence.

Resetting the hearing schedule through media and transferring the venue away from that written in the notice, without properly informing the respondents, is not merely gross negligence but an evident bad faith that actually caused injury to the respondents.

Unethical Dramatics

CODAL is also concerned of the impact on the justice system of the participation of the DOJ panel in a drama script played out with the appearance of a ‘masked’ witness who claims to be a security personnel of the respondents. If the witness is indeed a security personnel of the respondents, then there was no need for him to hide his face from respondents who are then presumed to personally know him, especially since he has publicly announced his real name. This highly irregular and amateur legal maneuver may be expected from an opposing counsel in a trial, but not from the DOJ panel who is required under the law, to exhibit impartiality and ensure the identity of the witness. If the witness is later found to have committed perjury, the DOJ panel may be implicated in the charade.

Writ of Habeas Corpus Suspended

The Executive’s refusal to implement a court order to release Rep. Crispin Beltran based on Sec. Ignacio Bunyi’s declaration that the decision was based on the wrong ‘premise’ puts into question whether emergency rule has indeed been lifted. Under the Constitution and Philippine laws, detention must be based on a court order—in ALL cases, and not on whether the executive agrees with a court decision. Even if Rep. Beltran is charged in a Makati RTC for rebellion, he may no longer be detained without a commitment order from the Makati RTC since he was arrested without a warrant. The executive’s implementation of warrantless arrests and refusal to implement court orders is already an undeclared suspension of the writ of habeas corpus without congressional concurrence. CODAL believes that these latest actions and pronouncements from the DOJ institutionalizes unconstitutional and highly irregular practices that will negatively impact on the rights of all those accused of a crime.

Use of Public Office Against Personal Enemies

The use of public office and funds against personal enemies of the President are clearly illegal and prohibited, not only under RA 3019, but also under Sec. 4 (c) and (d) of RA 6713 or the Ethical Standards for Public Officials, to wit :

(c) Justness and Sincerity—Public officials.. must act with justness and shall not discriminate against anyone…They shall at all times respect the rights of others and shall refrain from doing acts contrary to law…and public interest.

(d) Political Neutrality—Public officials and employees shall provide service to everyone without unfair discrimination and regardless of party affiliation or preference.

The use of the DOJ and the PNP to persecute political and personal opponents of the President, such as the Rep. Ocampo and other party list representatives and Mr. Alcuaz, the illegal dispersal of opposition rallies, and the refusal of the DOJ to follow a court order for the release of Rep. Beltran, clearly conflicts with the above provisions.

Furthermore, the fact that the DOJ filed various sedition and rebellion charges against opponents of the president, despite the clear ruling in Salazar vs. Enrile and Garcia-Padilla vs. Enrile that rebellion is but one continuing act and absorbs other crimes in relation to rebellion, is not only novel but a clear departure from established jurisprudence. The filing of separate rebellion cases against the same respondents will be interpreted by the legal community as nothing more than harassment, especially since it conflicts with the DOJ’s own pronouncements that rebellion as a ‘continuing crime’ and therefore one continuous act. In fact, the legal community finds the preliminary investigation conducted by the DOJ pointless considering that Sec. Gonzales has already prejudged the investigation by publicly finding probable cause and declaring that the respondents have committed a continuing crime of rebellion and therefore subject to warrantless arrest.

The arrest of Mr. Alcuaz for failure to return a car can only be interpreted as harassment, when compared with the kid glove treatment of Comm. Garcillano, Usec. Jocelyn Bolante who is suspected of involvement in the 728 million fertilizer scam and other allies of the President. The arrest of Mr. Alcuaz becomes more absurd since CODAL was shown a PCSO receipt of the car allegedly stolen, signed by a PCSO personnel named Mr. Baylosis.

All of the above acts, including attacks on press freedom through public threats of prosecuting the Inquirer and other media personnel, opens up Pres. Arroyo, Sec. Gonzales and other members of the DOJ and PNP to criminal and administrative liability under Philippine law.

CODAL urges the DOJ to decide legal issues based on the merits rather than personal and political favors. Presidents and Justice Secretaries come and go, and state prosecutors should not sacrifice their integrity (and careers) to protect the interest of any public official or politician. The latest moves of Pres. Arroyo and the Secretary of Justice further destroys the credibility of the criminal justice system and the government’s capacity to administer justice without fear or favor. These not only make them criminally liable during the official period of PP 1017 but even after its supposed ‘lifting’.

PNP and DOJ INSISTENCE ON WARRANTLESS ARREST: PROOF THAT PROCLAMATION 1017 HAS NOT BEEN LIFTED

Statement of March 9, 2006

CODAL views with concern the persistence of the PNP in conducting warrantless arrest disguised as ‘invitation’ despite the supposed ‘lifting’ of Proclamation 1017. The warrantless arrest of rallyists celebrating women’s day was illegal considering that the rally has a permit by operation of law and therefore no ‘crime’ was being committed at the time of the violent dispersal of said rallies. Sec. Raul Gonzales’ insistence on conducting warrantless arrest against members of the House of Representatives shows that PP 1017 remains in effect despite government pretensions to its lifting.

Regular judicial proceedings over warrantless arrest

Since Sec. Gonzales claims to have strong evidence against the Batasan Five party list members, he should immediately resort to the regular judicial procedure of filing an information and asking a judge to issue a warrant of arrest. His attempt to conduct an inquest over the Batasan Five, rather than make them undergo regular preliminary investigation, is another example of his gross ignorance of the law, since inquest is only applied to those arrested without warrant. The Batasan Five have not been arrested nor are they under detention, making inquest inapplicable to their case as provided under Sec. 7, Rule 112 of the Revised Rules on Criminal Procedure:

Sec. 7. When a person is lawfully arrested without a warrant involving an offense which requires preliminary investigation, the complaint or information may be filed by a prosecutor without need of such investigation, provided, an inquest has been conducted in accordance with existing rules. …

Preliminary Investigation under Rule 112, Sec 1 of the Revised Rules on Criminal Procedure is the applicable provision, to wit:

Sec. 1 Preliminary Investigation is an inquiry or proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial.

Due process dictates that the DOJ must first find out if the Batasan 5 is ‘probably guilty’ of a crime before filing an information and requesting for an arrest warrant. The requirement for probable cause is a regular procedure under the law and disregarding it merely because the accused are critics of Pres. Arroyo is not only unjust but opens Sec. Gonzales to possible violation of the Anti-Graft Law for actions that show ‘bias or preference’ in the performance of his duty and ‘causing injury’ to a third party, both of which merit 6 years imprisonment.

Sec. Gonzales confusing position is contradicted even by his DOJ staff who set the preliminary investigation of the complaints against the Batasan Five on 13 March 2006. He has, however, virtually prejudged the result of the investigation by insisting on arresting the five without warrant, an admission that he has already found “probable cause” on their cases despite the absence of a preliminary investigation.

The PNP assertion that the Batasan Five is under arrest via the protective custody agreement with the House and therefore going out of the Batasan is considered ‘escaping’, is again without legal basis. Resolution 1169 of the House expressly stated that the protective custody granted the five are to protect them from ‘warrantless arrest’. The PNP and DOJ position defies logic. How protection from arrest becomes arrest and detention itself? What agreement is the PNP referring to in the first place?

Fake Lifting

The constitutional infirmity of Proclamation 1017 is that it gives additional powers to the President, without congressional concurrence as required by the Constitution, either in Art. XII, Sec. 17 or Art. VI, Sec. 23. A unilateral emergency proclamation does not grant the President the power to raid media outfits, threaten media and impinge on press freedom. It does not grant her the power to cancel rally permits, as this power is reserved to local executives under the law. Nor does it authorize her to order warrantless arrest. The fact that these powers are still exercised by Pres. Arroyo shows that the lifting of emergency rule was a ‘fake lifting’ akin to the lifting of martial law in 1983.

CODAL urges the Supreme Court not to consider the issue moot, and settle the lingering legal and constitutional issues, namely:

(i) Does an emergency proclamation empower the President to raid media establishments without warrant? issue chilling effect statements and impose prior restraint through threats and regulations?
(ii) Does it grant the President the power to cancel all rally permits and violently disperse rallies, including those that have permits ?
(iii) Does it grant the President the power to conduct warrantless arrest?

The Supreme Court must expressly rule on these issues, otherwise, this so called ‘emergency power’ will be used and abused by future presidents in order to suppress dissent or silence legitimate protests, a clear attack on civil liberties.

CODAL also asks all lawyers to take part in battling impunity by helping the victims file the necessary criminal and administrative charges against police officers and other public officials who violate the law in implementing emergency rule. CODAL also asks Pres. Arroyo to fire Sec. Gonzales whose voluble preemption of DOJ processes and decisions, obnoxious manner of conducting himself and gross ignorance of the law makes his term the worst ever by a Justice Secretary.


Reference: Atty. Neri Javier Colmenares—Spokesperson

Don't dismiss petitions vs Proclamation 1017, SC told

Quotes from INQ7.net

For full news article, go to
http://news.inq7.net/breaking/index.php?index=1&story_id=68493
Don't dismiss petitions vs Proclamation 1017, SC told
First posted 01:18pm (Mla time) Mar 06, 2006
By Tetch Torres

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The Council for Defense of Liberties (CODAL), which will file a manifestation, along with legislators at the House of Representatives, led by Minority Floor Leader Francis Escudero, is apprehensive that with the lifting of the state of emergency, the high court will declare the case moot and academic.

They had filed a motion questioning the legality of Proclamation 1017, which President Gloria Macapagal-Arroyo issued on February 24, after a failed attempt to oust her by an alleged conspiracy of military "adventurists," communist rebels, and civilians.

CODAL spokesman Lawyer Neri Colmenares said they would ask the Supreme Court to clarify the scope of the President's powers in a state of emergency.

"We want to know if the President can execute warrantless arrests, if she can authorize raids on media offices or if the Bill of Rights can be disregarded in times of a state of emergency," Colmenares said.

"We do not expect it [the high court] to rule as unconstitutional [but] we want something categorical," he added, noting that the high court has upheld Arroyo's proclamation of a state of rebellion in 2003 when a band of junior officers and soldiers staged a shortlived mutiny in an attempt to oust her.

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Please attend Tuesday March 7 Supreme Court Oral Arguments

NEVER AGAIN!

We invite all lawyers, law students, and paralegals to attend the Tuesday, March 7, 1:00 pm Oral Arguments at the Supreme Court on the Petitions filed against Proclamation 1017. Members of the legal profession must unite in calling on the Supreme Court to rule that any declaration such as PP 1017 is prohibited for being unconstitutional, arbitrary and repressive.

Despite the paper-lifting of PP 1017, we must continue to assert this call against dictatorship and condemn the ongoing warrantless arrests, the stiffling of legitimate dissent, the dispersal of rallies, and the attacks against the media.

Join this call to say NEVER AGAIN!

Let us all meet at the Supreme Court on Tuesday, March 7 at 12:30pm. We invite you to wear discreet but noticeable blue sticker papers that will be made available by the CLCL. Please look for any CODAL member for this.

Please feel free to forward this to all your lawyers, law students and paralegals and everybody else.

Once again, let us show our unity and resolve to fight tyranny and uphold civil liberties as we dramatically proved during our historic protest rally-march to EDSA shrine last Friday.

See you!

CODAL Secretariat
Convenor, CLCL